1999 Suite: Commentary on Clause 12 – Measurement and Evaluation
FIDIC 1999 is a re-measurement contract, with the Employer bearing the risk of quantity variations. Clause 12 covers measurement, evaluation of rates, and valuation of omissions. It lacks a standard measurement method, which has been criticized.
1999 Suite: Commentary on Clause 09 – Tests on Completion
Clause 9 covers Tests on Completion, requiring the Contractor to give notice when ready to carry out Tests on Completion, addressing delays by either party, retesting after failure, and handling failures to meet contract requirements after retesting.
Cofely v Knowles – From Appointment to Disappointment
There have been two High Court cases within the last 15 months that lift the lid off what some perceive to be questionable practices (particularly in relation to the Eurocom case) that have developed over the last few years in the world of adjudication and arbitration in the UK. The first, in November 2014, was a decision of Ramsey J sitting in the Technology and Construction Court in Eurocom v Siemens PLC[1], and the second, which is the focus of this article, was a decision of Hamblen J, in the Commercial Court in Cofely Limited v Anthony Bingham and Knowles
BoQ Rates Neither ‘Immutable nor Sacrosanct’
The Hong Kong Court of Appeal now supports engineers requesting evidence of original tender build-up and disallowing loaded rates if substantial quantity differences justify it. This article explores that new guidance, which finds contract rates to be neither immutable nor sacrosanct.
1999 Suite: Commentary on Clause 04 – The Contractor
Clause 4 of the FIDIC Red Book 1999 consolidates various Contractor obligations, covering 24 topics. It includes general duties and references other significant obligations scattered throughout the Contract, such as communications, assignment, document care, compliance with laws, and time for completion.
2017 Suite: Commentary on Clause 05 – Design
Clause 5 changes include specifying designer qualifications, moving part of Sub-Clause 5.1 to 1.9, changing "approval" to "No-objection" in Sub-Clause 5.2, and introducing a new procedure for addressing design errors in Sub-Clause 5.8.
2017 Suite: Commentary on Clause 04 – The Contractor
Clause 4 changes include defining 'fitness for purpose' in Employer's Requirements, adjusting the Performance Security, handling communications by the Contractor's Representative, setting subcontracting limits, enhancing health and safety obligations, redefining unforeseeable conditions, and increasing Contractor risk for access routes.
Are ‘binding’ DAB decisions enforceable?
Opinions on enforcing 'binding' DAB decisions vary. Some arbitrators support enforcement, while others, including the Singapore Court of Appeal, oppose it. This article considers case law addressing both sides of the argument and the issues that they raise.
FIDIC’S procedures for the appointment of a DAB need improvement
If the parties to a FIDIC contract cannot agree on a suitable DAB member and they have selected FIDIC as their appointing entity, they may request FIDIC to appoint that DAB member. However, FIDIC’s present procedures seem less than ideal. They increase the prospect of rejection of the candidate nominated by FIDIC in the first instance and correspondingly the need to repeat the exercise. They could also result in an appointment unacceptable to one or both parties. This article posits that they should be revised. Obligation Under the Contract to Consult Recent court decisions from England and Switzerland have highlighted
‘Taking-Over’ in the FIDIC Red Book 1999: Common Problems
A Taking-Over Certificate in FIDIC contracts marks the handover date of Works to the Employer, who cannot use them until issued. Disputes arise in tough economies, with Employers delaying responsibility and Contractors eager to finish and reduce costs.
FIDIC Dispute Board Decisions: Late for a Very Important Date?
A FIDIC dispute board has just 84 days to give a decision, which is not very long. What happens when a FIDIC dispute board (DAB or DAAB) fails to deliver its decision on time and neither party serves a notice of dissatisfaction? The FIDIC dispute board and its decisions FIDIC's Red, Yellow and Silver books each contain a tiered dispute resolution procedure which includes adjudication by a dispute board (a Dispute Adjudication Board or 'DAB' in the 1999 books and a Dispute Avoidance/Adjudication Board or 'DAAB' in the 2017 books and 2022 reprints). The contractual agreement between the parties and
FIDIC Green Book 2021 – Short and Simple?
As one of the drafters of the Green Book 1999, the author of this article is biased in favour of the Green Book 2021. Despite that, it seems a pity that the Green Book 2021 did not get its own colour and title, such as the Intermediate Form of Contract. There is room in the market for both an updated short form and an intermediate form. The stand-out feature of the Green Book 2021 is the Prolongation Cost provision. This liquidates the Contractor's entitlement. This is a simple and attractive solution to an often-complex question but raises some questions: -
As simple as it seems? – an analysis of the prolongation costs clause in the FIDIC Green Book 2021
This article reflects on the introduction of an automatic contractual mechanism for calculating prolongation costs into the Green Book 2021 and will consider whether it will remove the expense of experts and lawyers from the process of claiming prolongation costs.
Risks in the Construction of Hydropower Projects: Unforeseen Ground Conditions under FIDIC
Hydropower projects rely heavily on ground conditions, which are often unpredictable despite pre-tender investigations. This article explores how FIDIC contracts, especially the Emerald Book 2019, address risk allocation and mitigation in underground construction projects.
Panther Pounces on Late Notice: Dubai court disagrees with Obrascon on time-bar under Sub-Clause 20.1 of FIDIC 1999
Contractors who fail to issue FIDIC 1999 Clause 20.1 notices on time risk losing claims. A DIFC Court of Appeal ruling reinterprets the 28-day notice period, challenging the Obrascon case and tightening requirements for timely contractor notifications under FIDIC contracts.
The Role of the FIDIC Observer in ICC Arbitrations on FIDIC contracts
The ICC informed a recent FIDIC Conference that draft awards dealing with FIDIC Contracts were routinely passed to the 'FIDIC Observer' for comment. The stated purpose being to ensure consistency of awards on FIDIC. In this article, I discuss the role of the FIDIC Observer in reviewing draft awards dealing with FIDIC contracts. I ask whether this complies with the ICC's Rules or could give grounds for challenge; and whether consistency in the absence of published awards is a desirable objective. Click the link below to read the full article.
Be Nice to the Kid in the Corner: Brussels Cour de Cassation provides Charter for Overworked and/or lazy arbitrators
This article considers the court's decision and implications in a case where an ICC Arbitral Tribunal Chair admitted that his Administrative Secretary drafted significant parts of the award, which was appealed as an unlawful delegation of authority.
Soaring global construction costs under FIDIC: whose risk?
This article first appeared in IBA Construction Law International, Vol 18 No 1, March 2023. It is well documented that construction and engineering projects around the globe are being affected by extreme and sometimes unprecedented price escalation. This is for many reasons including the ongoing effects of the Covid-19 pandemic and the Russia-Ukraine war. In this article, we look at FIDIC’s allocation of risk – in particular, the ‘Adjustments for Changes in Cost’, ‘Force Majeure’ and ‘Exceptional Events’ provisions. Type of contract The type of contract usually informs as to which party takes the risk (or benefit) of price fluctuations:
FIDIC 2022 Reprints: 10 Key Areas Of Change In The FIDIC Red Book 2017
FIDIC ‘launched’ the FIDIC 2022 reprints at the FIDIC International Construction Users’ Conference 2022, in London. The reception to the changes was mixed – some embraced the clarity; others questioned the significance and cost. This article draws your attention to 10 of the key areas of change in respect of the FIDIC Red Book 2017 including the definition of Claim, matters to be agreed or determined, the definition of Dispute and Exceptional Events.
The 12 Worst Things About FIDIC 2017 – A Christmas Special
The FIDIC 2017 forms first appeared at the December FIDIC Users’ Conference four years ago. No one has suggested that the FIDIC 2017 forms of contract did not rectify some of the problems in the FIDIC 1999 forms, and in Edward Corbett’s articles,[1] ‘Cherry Picking FIDIC 2017,’ and ‘FIDIC 2017 – First Impressions of the 3-Kilo Suite’, he considered some of these changes. This new suite of contracts had, at best, a lukewarm reception when they were first reviewed, with some commentators complaining about the length of these new contracts and that the contracts had not taken account of criticisms that had been made by reviewers. This article looks at the twelve worst ‘gifts’ that FIDIC gave to us for Christmas 2017.